International copyright talks seek BitTorrent-killer laws

Plan to torpedo Pirate Bay-style freedom claims

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A new international trade agreement could seek to strengthen criminal sanctions against BitTorrent tracker sites that claim not to profit from internet users sharing music, movies and software.

Many major tracker sites say advertising revenues and user donations are used to pay server and bandwidth costs. The operators of the Pirate Bay, currently on trial in Sweden, claim their chief motive is to destroy copyright law.

Now, a discussion paper circulated among the US, EU, Canada, Japan, Korea, Mexico, New Zealand, and Switzerland regarding the proposed Anti-Counterfeiting Trade Agreement (ACTA) has been leaked online. It includes a proposal to ditch any requirements under national law that copyright infringers must be seeking to profit in order to be judged criminal.

Plans for ACTA were announced last Autumn, but negotiations have taken place behind closed doors. The discussion paper lists "the types of provisions that could be included in the agreement". The Office of the US Trade Representative's (USTR) ACTA announcment from October last year is here. It makes no mention of internet piracy, although it's reported that the USTR drafted the leaked discussion paper.

The document suggests "criminal sanctions to be applied to [Intellectual Property Rights] infringements on a commercial scale [where there are] significant willful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (e.g. internet piracy)".

Governments should apply "deterrent-level" penalties against criminal copyright infringment, the discussion paper suggests, as well as powers to seize and destroy equipment.

For ordinary filesharers accused of civil infringement, the ACTA proposals include plans for rights holders to claim compensation, "including measures to overcome the problem of rights holders not being able to get sufficient compensation due to difficulty in assessing the full extent of the damage". In the landmark successful civil prosecution of Jammie Thomas by the Recording Industry Ass. of America last year, the jury awarded $9250 in damages for each of the 24 songs in her Kazaa-shared directory, a total of $222,000.

ISPs might be enouraged to read that while an ACTA framework would hope to encourage them to cooperate with rights holders, it would offer safeguards from liability in exchange.

ACTA might also seek to reanimate the corpse of DRM software by proposing legal "remedies against circumvention of technological protection measures used by copyright owners and the trafficking of circumvention devices".

At time of writing the EU had not responded to a request for clarification of its involvement in the process. The Canwest News Service reports that the proposals are expected to be discussed at the G8 meeting in Tokyo in July. A European Commission fact sheet released in October contradicts this, stating that ACTA will not be pursued through the G8.

Signs of an emerging international copyright consensus abound already, however. The so-called "three strikes" plan to combat filesharing by forcing ISPs to cooperate is being pushed simultaneously in the UK, France and Japan.